Summary: We will not investigate this complaint about damage caused by a Council tree. It is reasonable to expect Mr X to take court action.

The complaint

1. Mr X complains the Council ignored his concerns about one of its trees, which backs onto his garden. The tree subsequently damaged his property. He also says the Council failed to consider his reeds under the Equality Act 2010. He wants the Council to acknowledge its failings and compensate him.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.

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How I considered this complaint

5. I considered information provided by Mr X.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council has accepted some failings but denies negligence.
8. The courts can decide if there was negligence and, if so, what compensation the Council should pay. So the restriction in paragraph 3 applies. If Mr X cannot resolve the matter by an insurance claim, he can take the Council to court. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. Only the courts can decide if the Council has been negligent, and if so, enforce an award of damages. I would usually expect someone in Mr X’s position to seek a remedy in courts. Mr X has a disability, but he could ask the court to make any necessary adjustments. The potential cost of court action is not in itself automatically a reason to consider court action unreasonable. Mr X might get help with court costs from his insurer and could ask for some of his costs if his court action succeeds. In all the circumstances it is reasonable to expect Mr X to take court action.
9. Similarly, only the courts can decide if the Council has breached the Equality Act 2010. We do not know if the Council properly took account of Mr X’s individual needs, as he did not raise them in his complaint to it. As we are not investigating the substantive complaint, it is not in the public interest for us to start an investigation on this matter alone.

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Final decision

10. We will not investigate Mr X’s complaint because it is reasonable to expect him to take the Council to court if an insurance claim does not resolve the matter.

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Investigator's decision on behalf of the Ombudsman